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First Rent Appeal No.577 of 1985, decided on 18th June, 1987.

---S.15(2)(vii)--Personal bona fide need--Proof--Evidence on record showed that landlady seeking eviction of tenant on ground of personal need not only herself was. living in rented premises, but was suffering from disease for which doctor advised her to avoid climbing stair case--Landlady, held, sufficiently proved that she needed premises in good faith for her own living--Even otherwise she could choose to shift from her rented hous.3 .to her own house.

1985 M L D.1533; 1982 S C M R 260; P L D 1976 Kar. 832; 1984 C L C 521; P L D 1976 Kar. 696; Nikhat v. Manzoor Hussain 1985 M L D 1533; 1982 C L C 1444 and Mst. Hajira Bai v. Mst. Aisha Bai 1984 C L C S21 ref.

Hussain Adil Khatri for Appellant.

A.R.Niirza for Respondent..

Appellant Mst. Hajra Bai is landlady of a house on Plot No.1125/3, Federal 13. Area, Karachi. It was let out to the respondent Abdul Rasheed Tabany by her son in law by name Haji Ahmed somewhere in the year 1979: She filed Rent Case Nd.li67/81, on 10-4-81, for eviction of the respondent on the Main ground that she needed the house for her own living. She also alleged that the respondent had sublet the house without her consent. The respondent resisted the eviction case. He denied that he' was tenant of the appellant/ landlady, contending that the house was let out to him by Haji Ahmad. He also denied that the appellant /landlady bona fidely needed the house for her own use. The appellant filed her own affidavit and that of her son in law Haji Ahmed in evidence. She examined one more witness by name Ibrahim in proof of her ownership over the rented premises. The respondent filed his own affidavit in evidence. The learned Controller/ Senior Civil Judge-IV Karachi, held by order dated 7-12-1985, that there did exist relationship of landlady and tenant between the appellant and the, respondent; but he decided the issues of personal bona fide need and subletting against the appellant /landlady and dismissed the Rent Case. The landlady has filed the appeal. The respondent has not challenged the finding of the learned Controller on the issue of relationship of landlady and tenant between the parties.

The learned counsel for the appellant has urged that the learned Controller has erred in rejecting the plea of personal requirement put forth by the landlady/ appellant. He has submitted that the appellant has been living in a rented house and it is her privilege to choose to live in her own house even if plea of her ailment was not accepted. He has placed reliance on cases reported in 1985 M L D 1533; 1982 SCMR 260; and P L D 1976 Karachi 832. He has also made reference to several other authorities which do not need to be mentioned. He has not touched the finding on the issue of subletting. On the other hand, the learned counsel for the respondent has contended that the appellant /landlady sought eviction of the respondent on the ground of her ailment, which she did not prove and therefore there was lack of .good faith, entailing dismissal of the Rent Case. He has cited 1984 C L C 521; and P L D 19.76 Karachi, 696 as supporting authorities. ;

Appellant/ landlady Mst. Hajira Bai has filed her own affidavit that she had been living in a rented house and she had developed arthritis and -that she wanted to live, in her own' house on ground floor. She has filed a medical certificate in respect of her ailment she has been supported by her son-in-law, Haji Ahmed. Their evidence stands unshaken. The respondent has advanced the allegations of mala fide on the ground of demand for higher rent.

The appellant /landlady has been living in the rented house. She has stated that she has been advised to avoid climbing stair-case due to arthritis. Of course, she did not examine the Doctor who had issued her medial certificate. But she has been supported by her son-in-law Haji Ahmad. Even otherwise, she could choose to shift from rented house and live in her own house. There does not seem any element of mala fide behind her choice to shift to her own house. It was held by the Supreme Court in a case Nikhat v. Manzoor Hussain 1985 VI L D 1533 that the fact that-landlord was occupying other rented premise's and was living with relatives did not disentitle him from occupying his own house. The cases relied upon by the learned counsel for the respondent reported in' 1982 CLC 1444 (Mst. Hajira Bai v. Mst. Aisha Bai); 1984 C I; C 521 (Gul Raheem Khan v. Muhammad Naeem Khan) 1984 CIL C 521 enunciate that mere desire of the landlord to get rented premises vacated for his own use is not sufficient but the landlord has to establish his bona fide need to get the rented premises vacated. No doubt, a landlord seeking possession of the rented premises for his own occupation or use or for .use of his spouse or any of his children has to establish bona fide-need. In the instant case, the -appellant/landlady has brought out by her own Affidavit and that of her son-in-law Haji Ahmed that she has developed arthritis and therefore she has to shift from the rented premises on the upper storey to her own house on the ground floor, in occupation of the respondent. The evidence adduced by the appellant/landlady sufficiently proves that she needs the rented premises in good faith for her own living. The learned Controller misdirected himself id dismissing the rent case on the ground that she has not examined the doctor who has issued certificate of her illness.

Accordingly, the appeal is allowed, the impugned order dated 7th December, 1985 is' set aside; and .the Rent Case No.1767/81, the appeal has arisen from, is decided in favour of the appellant. The respondent is directed to deliver vacant possession of the rented premises to the appellant within two months.

H.B.T./H-57/K. Appeal allowed.

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